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Mendoza v. Wexford

United States District Court, C.D. Illinois

April 3, 2018

MICHAEL MENDOZA, Plaintiff,
v.
WEXFORD, et al., Defendants.

          MERIT REVIEW OPINION

          SUE E. MYERSCOUGH UNITED STATES DISTRICT JUDGE

         Plaintiff proceeds pro se from his incarceration in the Illinois River Correctional Center. His Complaint is before the Court for a merit review pursuant to 28 U.S.C. § 1915A. This section requires the Court to identify cognizable claims stated by the Complaint or dismiss claims that are not cognizable.[1] In reviewing the complaint, the Court accepts the factual allegations as true, liberally construing them in Plaintiff's favor and taking Plaintiff's pro se status into account. Turley v. Rednour, 729 F.3d 645, 649 (7th Cir.2013). However, conclusory statements and labels are insufficient. Enough facts must be provided to "'state a claim for relief that is plausible on its face.'" Alexander v. U.S., 721 F.3d 418, 422 (7thCir. 2013)(quoted cite omitted).

         Plaintiff alleges that he was diagnosed with a hernia in 2014 but Defendants refused to fix the hernia, causing Plaintiff to suffer severe pain and difficulties eating, sleeping, moving, and having bowel movements or urinating. Eventually one hernia turned into three hernias, and Plaintiff received surgery in 2017. Unfortunately, Plaintiff developed a severe infection after the surgery, Plaintiff believes caused by the surgeon's unspecified negligence.

         Plaintiff states an arguably Eighth Amendment claim for deliberate indifference to his serious medical need for adequate treatment for his hernia. However, this claim may proceed only against the Defendants who are state actors, essentially the Defendants working in the prison: Greenhagen, Osmunson, and Beard. Wexford Health Sources, Inc., will also remain as a Defendant in the event a policy or practice of Wexford caused the lack of medical care.

         Plaintiff's claim against the surgeon-Dr. Kent-would be a state law claim for malpractice. Dr. Kent is not a state actor and therefore cannot be sued on the Eighth Amendment claim. To pursue a state law claim for malpractice against Dr. Kent, state law requires Plaintiff to file a physician's report finding some merit to a malpractice claim, which Plaintiff has not done. 735 ILCS 5/2-622. Dr. Kent will be dismissed without prejudice to reinstating Dr. Kent with the report and affidavit required by 735 ILCS 5/2-622.

         IT IS THEREFORE ORDERED:

         1) Pursuant to its merit review of the Complaint under 28 U.S.C. § 1915A, the Court finds that Plaintiff states an Eighth Amendment claim for deliberate indifference to his serious medical need for adequate treatment for his hernia. This case proceeds solely on the claims identified in this paragraph. Any additional claims shall not be included in the case, except at the Court's discretion on motion by a party for good cause shown or pursuant to Federal Rule of Civil Procedure 15.

         2) Dr. Kent is dismissed without prejudice to reinstating Dr. Kent with the report and affidavit required by 735 ILCS 5/2-622.

         3) This case is now in the process of service. Plaintiff is advised to wait until counsel has appeared for Defendants before filing any motions, in order to give Defendants notice and an opportunity to respond to those motions. Motions filed before Defendants' counsel has filed an appearance will generally be denied as premature. Plaintiff need not submit any evidence to the Court at this time, unless otherwise directed by the Court.

         4) The Court will attempt service on Defendants by mailing each Defendant a waiver of service. Defendants have 60 days from the date the waiver is sent to file an Answer. If Defendants have not filed Answers or appeared through counsel within 90 days of the entry of this order, Plaintiff may file a motion requesting the status of service. After Defendants have been served, the Court will enter an order setting discovery and dispositive motion deadlines.

         5) With respect to a Defendant who no longer works at the address provided by Plaintiff, the entity for whom that Defendant worked while at that address shall provide to the Clerk said Defendant's current work address, or, if not known, said Defendant's forwarding address. This information shall be used only for effectuating service. Documentation of forwarding addresses shall be retained only by the Clerk and shall not be maintained in the public docket nor disclosed by the Clerk.

         6) Defendants shall file an answer within 60 days of the date the waiver is sent by the Clerk. A motion to dismiss is not an answer. The answer should include all defenses appropriate under the Federal Rules. The answer and subsequent pleadings shall be to the issues and claims stated in this Opinion. In general, an answer sets forth Defendants' positions. The Court does not rule on the merits of those positions unless and until a motion is filed by Defendants. Therefore, no response to the answer is necessary or will be considered.

         7) This District uses electronic filing, which means that, after Defense counsel has filed an appearance, Defense counsel will automatically receive electronic notice of any motion or other paper filed by Plaintiff with the Clerk. Plaintiff does not need to mail to Defense counsel copies of motions and other papers that Plaintiff has filed with the Clerk. However, this does not apply to discovery requests and responses. Discovery requests and responses are not filed with the Clerk. Plaintiff must mail his discovery requests and responses directly to Defendants' counsel. Discovery requests or responses sent to the Clerk will be returned unfiled, unless they are attached to and the subject of a motion to compel. Discovery does not begin until Defense counsel has filed an appearance and the Court has entered a scheduling order, which will explain the discovery process in more detail.

         8) Counsel for Defendants is hereby granted leave to depose Plaintiff at his place of confinement. Counsel for Defendants ...


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